Citation Nr: 21012228 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-06 637 DATE: March 3, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD), from March 17, 2008, to January 17, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From March 17, 2008 to January 17, 2017, the Veteran’s service-connected PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s service-connected PTSD rendered him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. From March 17, 2008 to January 17, 2017, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU during the entire period on appeal have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2008 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection and assigned an initial 10 percent rating for PTSD, effective March 17, 2008. In a January 2010 rating decision, the RO granted a higher initial 30 percent rating for PTSD, effective March 17, 2008. In June 2010, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). A copy of the transcript of the hearing has been associated with the record. In May 2011, the Board remanded the higher rating claim on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development. In February 2013, the Board expanded the appeal to include the matter of the Veteran’s entitlement to a TDIU due to PTSD, and remanded the higher rating and TDIU claims to the AOJ for further development. In an April 2018 rating decision, the AOJ granted a higher rating of 70 percent, effective January 17, 2017, for service-connected PTSD. In July 2019, the Board issued a decision which denied the Veteran's claims for a higher rating in excess of 50 percent from March 17, 2008 to January 17, 2017 and in excess of 70 percent since January 17, 2017, and remanded the claim for TDIU. The Veteran then appealed the Board's July 2019 decision to the United States Court of Appeals for Veterans Claims (Court) with regard to the claim denying a higher rating in excess of 50 percent from March 17, 2008 to January 17, 2017. In a July 2020 Order, the Court partially vacated the July 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The decision denying a rating in excess of 70 percent for PTSD from January 17, 2017 was not appealed. In a January 2021 letter, the Board notified the Veteran that the VLJ who conducted the June 2010 hearing was no longer employed at the Board and that the Veteran had a right to an additional hearing before another VLJ. The letter advised the Veteran to respond within 30 days. The Veteran did not respond. 1. An initial 70 percent rating, but no higher, for PTSD, from March 17, 2008, to January 17, 2017, is granted. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, an initial 50 percent rating for the Veteran’s PTSD has been assigned from the March 17, 2008, effective date of award of service connection to January 17, 2017. As noted above, during the pendency of the appeal, the RO assigned a higher disability rating of 70 percent from January 17, 2017. Although both ratings were assigned under DC 9411, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Turning to the pertinent evidence of record, in an April 2008 VA treatment record, the Veteran reported that he was anxious, depressed, and suffered from sleep disorders. The Veteran denied suicide ideation. The Veteran also reported that he had a wife to whom he had been married since 1975 and that he had two sons, one of whom suffered from psychiatric disorders, which was an ongoing stress for the Veteran and his wife. The Veteran was afforded a VA examination in June 2008. The Veteran reported that he was employed as a social worker where he investigated potential incidents of child abuse. The Veteran described his work as highly stressful and emotionally difficult to the point of inducing panic attacks immediately prior to any scheduled interview with a child. The Veteran reported that he retired in May 2007, but it increased his symptoms due to a lack of structure in his life. The Veteran reported that he returned to work as a social worker where he worked two to three times a week. The Veteran reported that he was close to both of his sons. The Veteran reported that as part of his social activities, he golfed or played cards with his wife, and played cards once a week with friends that he had known since high school. The Veteran also reported that he was friends with his coworkers, however, he specified that he felt emotionally distant from all people. The Veteran reported symptoms of depression, anxiety, sleep disruption, irritability, nightmares, intrusive thoughts, and avoidance of things that remind him of Vietnam. The Veteran also endorsed a tendency to avoid emotional attachment with others and stated that although he had a friendship with some people for decades, that he tended to keep people at “arm’s length.” The Veteran also endorsed feeling emotionally detached from his wife and two sons. The Veteran reported that he had not slept in the same bed as his wife for the past 30 years because he felt safer on the couch. The Veteran denied suicidal or homicidal ideation. The examiner noted that the Veteran was appropriately dressed in clean and casual clothing and was adequately groomed. The examiner also noted that the Veteran’s psychomotor activity was within normal limits. The Veteran was alert and fully oriented to person, place, time, and situation. Remoted memory was largely intact. Mood and affect were predominantly anxious and mildly depressed. The examiner observed that PTSD symptoms increased with less structure after retirement, as can be seen in Veterans with PTSD. Since seeking treatment in early 2008, symptoms have been generally in the mild range. His PTSD symptomatology is not severe enough to prohibit employment; he is currently employed part-time and appears to be doing well in his work. In an August 2008 statement, a social worker at the Vet Center stated that during treatment, the Veteran reported intrusive thoughts and a history of panic attacks. He took sick leave from work when panic attacks occurred. The clinician described that the Veteran had debilitating panic attacks one time or more per week. The clinician also noted that the Veteran reported that although the Veteran does not have suicidal ideation or plan, he reported wishing he would not wake up in the morning. The clinician also noted that the Veteran did not disclose all of his symptoms to a young female psychologist during the June 2008 VA examination because he feared he would start to cry and not be able to stop “losing control” during the examination. In an August 2009 VA telepsychiatry note, the Veteran reported that he had an increase in anxiety with a few panic attacks that required him to get of the situation that triggered the panic attack. The clinician noted that the Veteran’s mood was stable, and his thoughts were organized with no delusions. The Veteran reported no suicidal ideation and the clinician noted that the Veteran’s insight and judgment were intact. In an August 2011 VA telepsychiatry note, the Veteran reported that he was more depressed due to a recent death of a golden retriever, who died suddenly. The clinician noted that the Veteran’s mood was dysphoric and anxious. The clinician also noted that thoughts were organized with no delusions and that his insight and judgment was intact. The clinician noted that the Veteran had no suicidal ideation. The Veteran was afforded a VA examination in February 2012. The Veteran reported that he was emotionally detached from his wife and children and that he preferred being alone and avoided being in crowds. The Veteran also reported that he had been sleeping on his couch for the past 30 years. The Veteran also reported that he did not trust too many people. The Veteran described that he had bought a gun to “put away” a veteran he had previously befriended, who had sexually assaulted his son on several occasions. However, the Veteran reported that it would hurt his wife and children if he ended up in jail. The Veteran also reported that he was always under stress that he did not have any good days. The examiner noted that the Veteran dressed appropriate and with good grooming and hygiene. The examiner also noted that the Veteran was attentive but somewhat detached. Eye contact was good, and speech was described as soft in volume and tone and somewhat slowed in rhythm and rate. Speech content was noted as over-productive. The Veteran reported that sometimes he did not want to wake up and that he had a gun next to his bed, but that if he ever did hurt himself, he would make sure that the person who molested his son would “get the first round.” The Veteran denied any suicide ideation at the time. No hallucinations or delusions were reported or elicited. The Veteran reported that he had trouble remembering names, but the examiner noted that it was not a matter of memory problems but a matter of concentration or distraction. The Veteran reported no ritual or obsessive behaviors. The Veteran reported that he spent most of his time at home walking his dog, doing some chores, and watching television. The examiner opined that the Veteran’s PTSD was chronic and of mild to moderate degree. The results of the current evaluation suggest that the Veteran has shown some increase in psychiatric symptomatology since his previous evaluation in 2008. While some of the Veteran's problems may have been exacerbated by family difficulties (such as his wife's medical problems, his son's psychiatric difficulties, and activity changes a result of retirement), the Veteran is also reporting increases in symptoms such as increased anxiety, occasional panic attacks, and increased dreams and nightmares related to his Vietnam experiences. It is important to note, however, that the Veteran does have a tendency to over report symptomatology, as demonstrated clearly on psychological testing. The Veteran, on one instrument, presented a higher level of symptomatology than 99% of all outpatient psychiatric males, which clearly does not fit his history or current level of functioning. However, the Veteran does appear to be reporting a greater number of symptoms in general in comparison to his previous examination. The examiner concluded that the Veteran remains employable for psychiatric reasons alone and would not require special accommodations in scheduling or responsibilities in order to maintain employment. After resolving reasonable doubt in favor of the Veteran, an initial rating of 70 percent, but no higher, for PTSD throughout the appeal period is granted. The record shows that the Veteran endorsed symptoms of intrusive thoughts, anxiety, depressed mood, avoidance, irritability or outbursts of anger, hypervigilance, exaggerated startle response, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, nightmares, mild memory loss, and difficulty concentrating. Although the Veteran did not endorse suicidal ideation for part of the period on appeal, the August 2008 statement from the Veteran’s social worker noted that the Veteran reported that he would wish he did not wake up in the morning. Further, the clinician also noted that the Veteran reported that he did not disclose everything to the June 2008 VA examiner because he would begin crying and would not be able to stop “losing control” during the examination. With respect to social functioning, the Veteran reported that he retired in May 2007 because his work was highly stressful and emotionally difficulty to the point of inducing panic attacks.. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that throughout the appeal period, the Veteran’s overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas. Thus, an initial 70 percent rating is warranted. See 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The Board finds that a rating in excess of 70 percent is not warranted at any point during the period under review. Treatment records throughout the appeal period show that his speech was described as normal, clear, or unremarkable; thought process was linear, goal directed, logical, or unremarkable; judgment was normal or intact; and abstract thinking was normal. The record also shows no evidence of grossly inappropriate behavior, disorientation to time and place, or memory loss for names of close relatives, own occupation, or own name. Although the Veteran expressed a past desire to harm a person who molested his son and sometimes expressed that he wished he would not wake up in the morning, persistent danger of hurting himself or others has not been shown. Most importantly, total occupational and social impairment has not been shown. Accordingly, the criteria for a 70 percent rating, but no higher, have been met. 2. Entitlement to a TDIU is granted. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the period on appeal, service connection has been in effect for PTSD, evaluated as 70 percent disabling. He is also service connected for diabetes mellitus type II with bilateral cataracts at 20 percent from June 30, 2011; bilateral tinnitus at 10 percent from November 23, 2007; and bilateral hearing loss at a noncompensable rating from November 23, 2007. Thus, the Veteran meets the schedular criteria for TDIU. The record shows that the Veteran has a college degree. After service, the Veteran was employed as a social worker where he investigated potential incidents of child abuse. The Veteran retired in May 2007 due to his PTSD because the highly stressful and emotionally difficult part of the job, which included interviewing abused and/or neglected children, induced regular panic attacks during work. The Veteran’s symptoms worsened after retirement due to a lack of structure in his life. Upon review of the record and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a TDIU during the entire period on appeal is warranted. During this time, the Veteran reported isolating himself and emotionally detaching from people. The April 2020 VA examiner noted that the Veteran left work earlier than anticipated but then when he tried to return to work on more than one occasion on his former employer’s request, the increased symptoms at work made forced him to quit work again. The examiner noted that the Veteran’s anxiety, panic attacks, flashbacks, memory, and concentration issues were causing problems in the work place. The Veteran reported to the examiner that he had a private office at work but that the Veteran’s anxiety attacks were still noticed by his coworkers, who he reported became worried about him. The examiner concluded that the Veteran would still have difficulty functioning in some work settings but that he may not have symptoms that would preclude work all together. The examiner further noted that the Veteran had not regularly worked since 2008 and that there has been a big change in technology in the workplace since then. The examiner expressed his concern that the Veteran’s memory and concentration problems would prevent the Veteran from learning and working with the new technology. Based on the foregoing, the Board finds that it is at least as likely as not that the Veteran’s PTSD has prevented him from securing or maintaining substantially gainful employment. Therefore, TDIU is warranted throughout the period on appeal. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.